Students seeking jobs hit H-1B premium wall

Highlights

A recent USCIS move to suspend premium processing for H-1B applications will adversely impact "cap-gap" international students

Absence of premium processing has led to uncertainty as several immigrant workers may not be able to commence work in the US from the expected date of October 1

MUMBAI: A recent US Citizenship and Immigration Services (USCIS) move to suspend premium processing for H-1B applications will adversely impact "cap-gap" international students. In addition, it will hamper employer plans to hire H-1B workers. Absence of premium processing has led to uncertainty as several immigrant workers may not be able to commence work in the US from the expected date of October 1.

"I have requested Secretary of State Mike Pompeo to adopt a balanced and sensitive view on the proposed changes in the H-1B visa regime," said external affairs minister Sushma Swaraj on the 2+2 dialogue.

The H-1B visa is a non-immigrant visa that allows US companies to employ foreign workers in specialty occupations. Premium processing was scheduled to be suspended only till September 10, 2018. Late last month, USCIS announced that the suspension would last till the estimated date of February 19, 2019. As the usual processing time of an H-1B application is upwards of six months, premium processing enabled sponsoring employers to reduce the processing time to 15 days on payment of a fee.

The term cap-gap refers to the period between the time an international student's F-1 status ends and the H-1B status begins. International students are eligible for a 12-month optional practical training (OPT), under which they can work in the US. Those who have completed their degrees in science, technology, engineering and mathematics are eligible for applying for a further OPT extension of 24 months.

Cyrus D Mehta, New York-based immigration attorney and founder of a law firm, told TOI: "Employers have to offer jobs prior to April 1 and then file H-1B applications within the first five days of April to be considered in the H-1B lottery. If selected in the lottery, the F-1 student whose OPT expired after April 1, is allowed to continue to work in a 'cap-gap' status. However, if the application is not processed by October 1, because it could not go through premium processing, the student must stop working until the H-1B is approved. It makes no sense to string both an employer and potential H-1B worker for more than six months, and the suspension of premium processing enables the Trump administration to do just that."

"Without premium processing, many of these applications may remain pending into 2019, especially given the higher likelihood of a request for evidence (RFEs) being issued. These students will be left without a job, without health insurance and without an income for the foreseeable future. They must choose between leaving the US, or remaining without a way to support themselves," says Emily Neumann, immigration attorney and partner at Reddy & Neumann.